End User License Agreement
This end user license AGREEMENT (this “Agreement”) IS A LEGAL AGREEMENT BETWEEN, ON THE ONE HAND, YOU (A CORPORATION, ACADEMIC INSTITUTION OR OTHER LEGAL ENTITY) (“LICENSEE“) AND, ON THE OTHER HAND, SENSAVIS AB (“SENSAVIS“) FOR THE LICENSED PRODUCT AS FURTHER DEFINED HEREIN.
BY ACCEPTING THIS AGREEMENT IN THE PRODUCT IN ANY WAY, INSTALLING, COPYING OR OTHERWISE USING THE LICENSED PRODUCT, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT ACCESS, INSTALL, OR USE THE LICENSED PRODUCT.
Sensavis and Licensee may also be referred to herein collectively as the “Parties” and each individually as a “Party”.
1.1 Sensavis has developed computer software code to be used for the purpose of providing, inter alia, a 3D interactive educational environment.
1.2 The Licensee is in the business of providing education, either public or private, and wish to use the software developed by Sensavis for educational purposes.
2.1 “Confidential Information” means the Documentation, information, data drawings, specifications, trade secrets, object code form copies of the Software, source code relating to the Software, and any other proprietary information disclosed or supplied to Licensee under this Agreement or otherwise accessed or retrieved by Licensee as a result of Licensee’s lawful or unlawful use of the Licensed Product.
2.2 “Designated Computer” means the central processing unit, including other related equipment such as the computer monitor, on which the Software is originally installed.
2.3 “Documentation” means all on-line help files, specifications and/or written instructions and manuals regarding the use of the Software, and all intellectual property rights of Sensavis pertaining thereto.
2.4 “Licensed Product” means the Software and the Documentation collectively, unless the context requires otherwise.
2.5 “License Term” means the commercially agreed period between the Licensee and Sensavis following the Effective Date of this agreement.
2.6 “Software” means the computer software program code, as further specified in in Exhibit A, and all intellectual property rights of Sensavis pertaining thereto.
2.7 “Updates” means a release of bug-fixes, patches, revisions, additions, modifications, enhancements, improvements and new versions and releases made to correct defects in the Licensed Products.
2.8 “Recording rights” means the right to record videos or pictures based on the visual screen appearance the software produces.
2.9 “Upgrade” means a release of new features or changes in performance or capabilities to the existing functionalities in the Software.
3. LICENSE GRANT ETC.
3.1 Subject to the terms and conditions of this Agreement, Sensavis hereby grants the Licensee a limited, non-exclusive, non-transferable, non-assignable, and non-sublicensable right to display, operate and dispose over the Licensed Product (a) solely for academic and educational purposes, (b) during the License Term, and, with regard to the Software, (c) on the Designated Computer only. The license to the Software is limited to the executable object code form thereof only.
3.2 Licensee may make (a) one (1) copy of the Software in executable object code form solely for backup purposes, and (b) a limited number of copies of the Documentation in order to support Licensee’s use of the Software as permitted by this Agreement. Licensee must reproduce on any copy of the Software and the Documentation any and all copyright notices and any other proprietary legends on the original copy thereof.
3.3 Licensee agrees in its use of the intellectual property licensed under this Agreement to comply with all applicable statutes, regulations, and guidelines.
4. LICENSE RESTRICTIONS
Licensee is responsible for all activities with respect to the use of the Licensed Product. Licensee shall supervise and control that all use of the Licensed Product is made only in accordance with the terms of this Agreement. Without limiting the generality of the foregoing, Licensee shall not and shall not permit any other party, including its employees, to:
a) use, copy or transfer the Licensed Product other than as permitted by this Agreement and in accordance with all applicable laws and regulations;
b) use the Software on any device other than the Designated Computer and shall not distribute or make it available over a network where it could be used by multiple devices;
c) record the product and thereby create a film or picture from the product, if not clearly approved in the commercial agreement between Parties.
d) broadcast or stream the product in any kind of environment, one to one or one to many, if not clearly approved in the commercial agreement between Parties.
e) use the Licensed Product to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortuous acts, including any breach of privacy or infringement, violation or misappropriation of any intellectual property rights and/or other proprietary rights of any third party;
f) sell, lease, rent, loan, license, sublicense, redistribute or encumber the Licensed Product, either directly or indirectly, for payment or otherwise;
g) alter, modify, adapt, translate, deface, decompile, disassemble or reverse engineer the Licensed Product or otherwise attempt to derive or gain access to the source code or the file format of the Software, unless and to the minimum extent permitted under mandatory law;
h) create derivative software or any other software program from the Software or based on the Confidential Information of Sensavis;
i) provide, disclose, divulge, make available to, or permit use of the Licensed Product or the Confidential Information by persons other than Licensee’s employees or registered students; or
j) remove, modify, alter, cover or obscure any product name, trademark, patent notice or similar marking on the Licensed Product.
5. RECORDING RIGHTS
5. 1 If the Licensee has a commercial agreement that includes Recording rights, the Licensee has the right and agrees to:
5.1.1 Produce unlimited number of videos and pictures to be used for educational non-commercial purposes within the entity(s) that is included in the commercial agreement.
5.1.2 Not sell or in other ways commercially benefit from the videos & pictures produced using the software.
5.1.3 Ensure that videos & pictures produced using the software will not be publicly available for what ever reason.
5.1.4 Ensure that the use of videos & pictures produced by the Licensee only will be available for use at the Licensee entity as long as the commercial agreement with Sensavis is in effect.
6. LICENSE FEE
6.1 The Licensed Product is provided to Licensee directly by or through the resellers of Sensavis. The applicable license fee and other remuneration for the Licensed Product to be paid by Licensee and the terms of payment related thereto is determined in the agreement between Sensavis or the relevant reseller and Licensee. Sensavis has received full consideration for the license granted herein through the contractual agreements entered into between Sensavis and its resellers. Consequently, no further compensation for the license hereunder shall be payable by Licensee to Sensavis.
7. UPDATES AND UPGRADES, SUPPORT
7.1 During the License Term, Sensavis will provide Licensee, either directly or through a third party reseller, with all Updates and Upgrades made to the Licensed Product that Sensavis makes generally available to its other licensees at the time such Updates and Upgrades are generally released if Updates and Upgrades are included in the purchase of the license.
7.2 The terms of this Agreement will govern any Updates and Upgrades provided by Sensavis that replace and/or supplement the original Licensed Product, unless such Updates or Upgrades is accompanied by a separate license in which case the terms of that license will govern.
7.3 If Licensee has acquired the Licensed Product through a reseller Sensavis does not provide support directly to the Licensee and the License may thus not contact Sensavis directly for questions or requests for support. Any support to Licensee with regard to the Licensed Product requires an agreement between the Licensee and the third party reseller of the Licensed Product. Provided that such third party reseller has a valid agreement with Sensavis, Sensavis may provide second line maintenance and support services to such reseller for the benefit of Licensee.
7.4 If Licensee has acquired the Licensed Product directly from Sensavis, Sensavis will provide support, within reasonable time, directly to the Licensee. The support will be off-site using telephone, email or other distance communication tools. Support will always be at best effort.
Licensee agrees that Sensavis may audit Licensee’s use of the Licensed Product for compliance with the terms of this Agreement at any time, upon reasonable notice. In the event that such audit reveals any use of the Licensed Product by Licensee other than in full compliance with the terms of this Agreement, Licensee shall reimburse Sensavis for all reasonable cost and expenses related to such audit in addition to any other liabilities Licensee may incur as a result of such non-compliance.
9. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP RIGHTS
9.1 Ownership of and all intellectual property rights in the Licensed Product vest exclusively in Sensavis and, as the case may be, its suppliers and licensors. The structure, organization and source code of the Software are valuable trade secrets of Sensavis and, as the case may be, its suppliers and licensors. Except only as expressly stated herein, Licensee is not granted any right or license with respect to the Licensed Product or any part thereof. Sensavis reserves all rights not expressly granted to Licensee by this Agreement.
9.2 All copies of the Licensed Product, in whatever form, provided by Sensavis or made by Licensee, shall remain the property of Sensavis, and such copies shall be deemed to be on loan to Licensee during the License Term.
9.3 The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at www.sensavis.com and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, Licensee is also accepting the additional terms and conditions, if any, set forth therein.
10. INDEMNIFICATION BY SENSAVIS
10.1 Sensavis, at its own expense, will defend any action brought against Licensee based on a claim that any Licensed Product infringes a patent, copyright or trademark of a third party and, at its option, will settle any such action or will pay any final judgment awarded against Licensee, provided that: (a) Sensavis shall be notified promptly in writing by Licensee of any notice of any such claim; (b) Sensavis shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise and shall bear the costs of the same (save where one or more of the exclusions in Section 10.2 applies); and (c) Licensee shall cooperate fully at Sensavis’ expense with Sensavis in the defense, settlement or compromise of such claim.
10.2 If a claim described in Section 10.1 hereof occurs or, in Sensavis’ opinion, may occur, Licensee shall permit Sensavis, at Sensavis’ option and expense to: (a) procure for Licensee the right to continue using the Licensed Product; (b) modify the Licensed Product so that it becomes non-infringing without materially impairing its functionality; or (c) terminate the applicable licenses, accept return of the applicable Licensed Products and grant Licensee a credit thereon equal to the license fees paid by Licensee hereunder.
10.3 Sensavis shall have no liability to Licensee under this Section 10 or otherwise to the extent that any claim of infringement is based upon: (a) use of the Licensed Product in combination with equipment or software not supplied hereunder where the Licensed Product itself would not be infringing; (b) use of the Licensed Product in an application or environment for which it was not designed or not contemplated under this Agreement; (c) use of other than a current release of the Licensed Product provided to Licensee; (d) use of the Licensed Product in violation of the Documentation or other instructions with regard to the Product as provided by Supplier; (e) modification of the Licensed Product by anyone other than Sensavis or its employees or agents; or (f) any claims of infringement of any patent, copyright, trade secret, trademark or other proprietary right in which Licensee has an interest.
10.4 This Section 10 states Sensavis’ sole and exclusive liability and Licensee’s sole remedy for any and all claims relating to infringement of any intellectual property right.
11. INDEMNIFICATION BY LICENSEE
The Licensee agrees to indemnify Sensavis and hold Sensavis harmless against and from any claim, proceeding, loss, liability, fine, cost and expense (including court costs and reasonable fees for attorneys and other professionals) incurred as a result of (a) Licensee’s use of the Licensed Product, (b) the Licensee failing to fulfill its obligations or breaching the terms of this Agreement, (c) any failure of the Licensee to pay for, or to have all necessary rights, approvals and licenses required should the Licensed Product be interfaced with third party software and/or hardware, and (d) any use or combination of the Licensed Product or any part thereof with any other programs or materials if such use or combination infringes any intellectual property rights of third parties.
12. LIMITED WARRANTY AND LIMITATION OF LIABILITY
12.1 Licensee acknowledges that the Software may contain bugs, defects and malfunctions even when properly used. Upon notification from Licensee or the reseller of the Software, as applicable, Sensavis will during the License Term make reasonable efforts to correct such bugs, defects or malfunctions without undue delay. If the bugs, defects or malfunctions are wholly or partially caused by the hardware, storage media, web server, operative system, database engine or other components or media, Sensavis shall have no obligations under this Section 12.1.
12.2 SUBJECT TO SECTION 12.1 ABOVE AND WITHOUT PREJUDICE TO THE OTHER OBLIGATIONS SET FORTH HEREIN, THE LICENSED PRODUCT IS DELIVERED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE LICENSED PRODUCT IS ASSUMED BY LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SENSAVIS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, OR ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION OR SAMPLE WITH RESPECT TO THE SOFTWARE. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE LICENSED PRODUCT OR THAT THE USE OF THE LICENSED PRODUCT WILL BE UNINTERRUPTED, BUG FREE OR THAT ANY ERRORS OR DEFECTS IN THE LICENSED PRODUCT WILL BE CORRECTED, OR THAT THE FUNCTIONALITY OF THE LICENSED PRODUCT WILL MEET LICENSEE’S REQUIREMENTS.
12.3 SENSAVIS SHALL NOT BE LIABLE TO THE LICENSEE OR TO ANY OTHER PARTY FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE LICENSE GRANTED IN THIS AGREEMENT, THE LICENSED PRODUCT, THE USE THEREOF OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE LAWFULLY EXCLUDED UNDER THE APPLICABLE LAW.
12.4 NOTWITHSTANDING THE GENERALITY OF SECTION 12.3 ABOVE, SENSAVIS EXPRESSLY EXCLUDES LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE WHICH MAY ARISE IN RESPECT OF THE LICENSED PRODUCT HOWSOEVER CAUSED EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, LOSS OR DAMAGE CAUSED BY THIRD PARTY CLAIMS SHALL ALWAYS BE CONSIDERED INDIRECT DAMAGES UNDER THIS AGREEMENT.
12.5 THE ENTIRE LIABILITY OF SENSAVIS UNDER ANY PROVISION OF THIS AGREEMENT AND LICENSEE´S EXCLUSIVE REMEDY (EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12.1) SHALL BE LIMITED TO THE LICENSE FEE PAID BY LICENSEE TO SENSAVIS IN ACCORDANCE WITH SECTION 5.1.
12.6 The limited warranty, the disclaimer, and other limitations of liability set forth herein are fundamental elements of the basis of the agreement between Sensavis and Licensee and Sensavis would not be able to provide the Licensed Product on an economic basis without such limitations. The limitations of liability shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
12.7 The limitations of liability set forth herein shall not apply in case of gross negligence or willful misconduct.
13. TERM AND TERMINATION
13.1 This Agreement will automatically expire on the last day of the License Term unless terminated earlier as provided in this Agreement.
13.2 Licensee shall have the right to terminate this Agreement by giving thirty (30) days written notice to Sensavis. Sensavis has the right to terminate this Agreement immediately upon written notification to Licensee, if Licensee fails to fulfill its obligations according to this Agreement. Licensee will not be entitled to refund of any commercially agreed License Fees.
13.3 Upon termination or expiration of this Agreement, all licenses conferred by this Agreement shall cease and Licensee shall (a) immediately discontinue the use of the Licensed Product and the Confidential Information of Sensavis provided to Licensee under this Agreement, and (b) without delay destroy all copies, including electronic copies, of the Licensed Product (including parts thereof), the Confidential Information and any other data in respect of Licensed Product supplied by Sensavis.
13.4 The termination of this Agreement shall be without prejudice to the rights of the Parties accrued up to the date of such expiry or termination. Sections 2, 11, 12.2 through 12.7, 13.3, 13.4 and 14 through 19 shall survive termination and expiration of this Agreement for any reason.
In the event that any terms, conditions or provisions contained in this Agreement or any part thereof are determined to be void, voidable, illegal, invalid or unenforceable by any court of competent jurisdiction, the Parties shall endeavor to agree to amend the agreement in such a reasonable manner as achieves the intention of the Parties without illegality. In default of such agreement, the invalid term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.
Neither this Agreement nor any rights granted by virtue of it, or resulting from it, may be assigned by the Licensee to a third party without Sensavis’ prior written consent.
16. CONFIDENTIAL INFORMATION
Licensee acknowledges that the Confidential Information is proprietary to Sensavis and/or its suppliers and licensors. Licensee agrees that the Confidential Information is made available for use solely under and in accordance with this Agreement. Licensee has no right at any time during or after expiry or termination of this Agreement to disclose any Confidential Information, whether directly or indirectly, to any third party without Sensavis’ prior written consent. Licensee shall hold harmless, defend and indemnify Sensavis from and against any and all losses, costs, damages and expenses arising out of or in connection with Licensee’s failure to comply with the requirements of this Section 16. This confidentiality undertaking shall not apply to any part of the Confidential Information which the Licensee can prove (a) was known to it prior to being furnished to it hereunder (as evidenced by written record predating such disclosure), (b) was or became public knowledge through no fault or breach of the terms of this Agreement by the Licensee, or (c) was received by the Licensee from a third party in good faith and not in breach of any agreement. Licensee’s confidentiality obligations hereunder shall survive expiration or termination, for any reason, of this Agreement.
17. EXPORT CONTROL REGULATIONS
Licensee acknowledges that the Licensed Product may be subject to export control regulations and that it is the sole responsibility of Licensee to make sure that any export or re-export thereof (as permitted under this Agreement, if at all) will be in accordance with said regulations.
18. FORCE MAJEURE
Neither Party shall be liable for breach of any of the provisions of this Agreement in case of force majeure. Force majeure shall include, but shall not be limited to, inability to supply the Software, material breakdown of its equipment, labor disputes of whatever nature or cause, and any other circumstances reasonably beyond the control of the Party claiming that this provision shall apply.
19. APPLICABLE LAW AND ARBITRATION
19.1 This Agreement shall be construed under and governed by the laws of Sweden without giving effect to its provisions of conflict of law.
19.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Arbitration proceedings shall be held in Stockholm, Sweden. The proceedings shall be conducted in the Swedish language.
19.3 Notwithstanding the provision in Section 19.2, Sensavis may, at its sole choice and discretion, institute proceedings concerning the recovery of any fees and rates unpaid under this Agreement in any court having jurisdiction over the Licensee and also in the District Court of Stockholm, the jurisdiction of which the Licensee hereby expressly and irrevocably submits to.